MARTIN v. THE STATE OF NEW YORK, #2002-032-026, , Motion No. M-66002

Synopsis

An inmate's motion for permission to late file a claim is denied as
unnecessary. When the motion was brought, the applicable time limitation for
filing a claim as of right had not expired. Although it did expire while the
motion was pending, movant must bring a new motion to obtain the relief afforded
by section 10(6).

Movant seeks the Court's permission to late file a claim. This motion was
brought in November 2002, and the proposed claim alleges that

on October 1, 2002, correction officers at Upstate Correctional Facility used
"excessive force & unnecessary use of force," pushing claimant down a flight
of stairs, stabbing him in the right thumb, kicking him, and punching him in the
face (proposed claim, ¶2).

Claims for either intentional or unintentional torts arising from the actions of
State officers and employees must be commenced, either by filing and service of
a claim or service of a notice of intention, within ninety days of the date on
which the claim accrued (Court of Claims Act §§10[3], 10[3-b]).
Litigants who fail to comply with the time limitations contained within sections
10(1) to 10 (5) of the Court of Claims Act may apply to the Court for permission
to file an untimely claim, pursuant to section 10(6) (McCann v State of New
York, __ Misc 2d ; 2002 WL 31940712). At the time this motion
was commenced, movant still had the right to commence an action without Court
permission, as ninety days had not passed since the claim accrued. He could
have filed and served a claim, or served a notice of intention, anytime before
December 30, 2002. The remedy provided by Court of Claims Act §10(6) is
available to "[a] claimant who fails to file or serve upon the attorney general
a claim or to serve upon the attorney general a notice of intention, as provided
in the foregoing subdivisions, within the time limited therein." Even if movant
misread or did not understand that he had an independent right to commence an
action, he was so informed by the the affidavit of defense counsel, which was
served on November 27, 2002[1] and which stated,
"As ninety days have not elapsed since the date of the alleged accrual date the
time for properly serving and/or filing a notice of claim and/or notice of
intention to file a claim has not elapsed." It appears from the Court's
records that movant did not avail himself of the opportunity to commence his
claim as of right. Those records contain no pending claim under the names Paul
Ali Martin, Paul Martin, Paul Ali Hill, or Paul Hill (see footnote 1). It may
be that movant simply changed his mind and decided not to sue the State.
If, however, he wishes to pursue his proposed action against the State, it
will be necessary for him to make another, timely motion for permission to late
file. As noted above, by the express terms of the statute, a potential
claimant whose time to commence an action has not expired does not fit
within the definition of those entitled to seek permission to late file. If
motions of this nature were entertained once the applicable time period had
expired, defense counsel could be lured into opposing such a motion only on the
grounds of prematurity (as counsel did here) and then, if the Court's decision
was not issued until after expiration of the statutory time limit, having to
petition for additional time to address the motion decided on its merits. Most
significantly, if the practice of moving for permission to late files claims
that were not, in fact, untimely were to become widespread, it would inevitably
result in more work for the Court by requiring a motion decision rather than
mere acceptance of a claim. Claimant's motion is denied, on the ground
that it was unnecessary when it was commenced.

January 21, 2003Albany,
New York

HON. JUDITH A. HARDJudge of the Court of Claims

The following papers were read on movant's motion for permission to file an
untimely claim

[1] The Court notes that the name in the caption
of the affidavit was "Paul Ali Hill," rather than "Paul Ali Martin." The DIN
identification number (01-R-5522) was that assigned to claimant, however, and
there is no reason to assume that the affirmation did not reach claimant in a
timely fashion. The affidavit clearly state that the response relates to a
claim that accrued on October 1, 2002.